San Vicente & Anor v Secretary of State for Communities & Local Government & Ors

In a challenge under Town and Country Planning Act 1990, the expiry of the six-week period for bringing proceedings does not prevent an amendment to the grounds where the claim itself remains the same. The application falls under CPR 17.1(2)(b), not the stricter conditions in CPR 17.4.

Permission to amend requires a case better than merely arguable, though the court must not conduct a mini-trial. In planning hearings, procedural fairness includes a genuine opportunity for interested persons both to present their views and to hear material evidence and submissions. An initial failure to notify objectors, followed by an unclear or incomplete rehearing, may give rise to substantial prejudice.

Whether a Schedule 2 development requires an environmental impact assessment remains a fact-and-judgment screening decision. Visual impact alone does not necessarily require an assessment.

The claimants, residents of Great Dunmow, brought proceedings under section 288 of the Town and Country Planning Act 1990 challenging an Inspector’s decision to allow outline planning permission for up to 100 houses. Their original grounds challenged the planning merits and were accepted to be unsustainable.

After the six-week period had expired, they sought to substitute grounds alleging procedural unfairness because local residents had not been notified of the original hearing, and failure to require an environmental impact assessment under the 2011 Regulations. The court had to decide whether the amendments were permissible and whether either proposed ground had a real prospect of success.

1. Amendment under CPR 17. The six-week period for a section 288 claim is not a limitation period within CPR 17.4. Following Eco-Energy (GB) Ltd v First Secretary of State [2005] 2 P&CR 5, CPR 17.4 did not apply. The proposed amendments did not add or substitute a new claim: the claim had always sought to quash the Inspector’s decision, although the grounds of challenge changed. The application therefore fell to be determined under CPR 17.1(2)(b).
2. The merits threshold was effectively that applicable to summary judgment under CPR 24.2(a)(ii). The claim had to be better than merely arguable, but it did not have to be likely to succeed. The court should not conduct a mini-trial.
3. Permission was granted for the procedural-fairness ground. A fair planning hearing must give interested persons an opportunity to present their views and to hear the material views and evidence of others. The failure to notify local objectors of the original hearing, combined with uncertainty about whether the resumed hearing was a full rehearing or merely a supplementary session, created a real prospect that the claimants could establish substantial prejudice under section 288(5). The informal nature of the hearing did not remove the requirement of fairness.
4. Permission was refused for the environmental-impact-assessment ground. The question whether Schedule 2 development was likely to have significant environmental effects involved fact and judgment. A statutory challenge would ordinarily require irrationality or obvious error; even if European Union law required more intensive scrutiny, the proposed development’s visual impact and use of a single arable field did not make the screening decision arguably unlawful.
5. The public interest in certainty arising from the six-week limit was important, but it was matched by the need for the planning process to be fair and to be seen to be fair. The amendment was allowed on the procedural ground. The original grounds fell away.